Domestic Violence Prosecutions Have Dropped Under City Attorney Mara Elliott

City Attorney Mara Elliott has prosecuted fewer and fewer domestic violence cases since the start of her tenure, and 2020 marked a new low, city data shows.

The domestic violence unit at the San Diego City Attorney’s Office prosecuted its highest case count of Elliott’s tenure in 2017, her first full year in office, according to city data released to Voice of San Diego in response to a public records request. But since then, such prosecutions have fallen, and cases stumbled further in 2020.

The decline comes at the same time victim advocates near and far report domestic violence services are in high demand as the impacts of the coronavirus pandemic wreak havoc on already abusive home lives.

Per the data, domestic violence prosecutions in 2020 averaged 56 cases per month, down from 65 per month in 2019 and 77 per month in 2017, the data shows. Comparing 2020 to 2019, that is a drop of 15 percent while the number of cases referred to the unit had dropped less, at 13 percent.

The peak of the last decade occurred in 2015, when domestic violence cases averaged 94 per month, the data shows.

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When domestic violence cases peaked in 2015, then-city attorney Jan Goldsmith’s case issue rate reached 40 percent, calculated by dividing the number of cases charged to the number of domestic violence cases received that year – though some cases carry over year-to-year.

Elliott’s domestic violence case rate so far has peaked at 34 percent in 2017, then dropped to 29 percent in 2018, rose to 31 percent in 2019 and dropped to 30 percent in 2020.

By comparison, San Diego County District Attorney Summer Stephan’s domestic violence case issue rate was 35 percent in both 2018 and 2019, including her first full year on the job. That number was poised to drop to 33 percent in 2020, according to 2020 data through November provided by her office.

Unlike Elliott, the average number of domestic violence cases filed each month by Stephan’s office was not on track for a notable drop. Those averaged 222 per month in 2018, 223 in 2019 and 220 in 2020, the county data shows.

Stephan prosecutes felonies and misdemeanors throughout San Diego County, while Elliott only prosecutes misdemeanor crimes within the city of San Diego. Elliott also serves as top legal counsel for the city of San Diego and oversees a $62 million budget.

As prosecutions for domestic violence by Elliott dropped in 2020, calls to the victim support centers like the San Diego Family Justice Center have surged. Advocates say the impacts of the coronavirus pandemic, like isolation and job loss, have made it harder for victims to leave abusive relationships.

The San Diego center – led the San Diego City Attorney’s Office with a $1.1 million budget and nine employees – is providing its services almost entirely remotely, while several similar centers elsewhere in the state have kept their doors open during the pandemic.

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Elliott’s resume prior to taking the city’s top attorney post included municipal law work for the city, county, the Metropolitan Transit System and multiple school districts. She had never worked as a prosecutor.

Elliott spokeswoman Hilary Nemchik said 257 domestic violence cases referred for prosecution in 2020 are still under review, and prosecutors have one to five years to file charges, depending on the crime. Most crimes require charges within one year, though.

Nemchik also noted some rejected domestic violence cases over the years were ultimately referred to the county district attorney as a felony or may get “consolidated” with other charges or result in revocation of parole rather than a new criminal case.

COVID-19 also disrupted the flow of cases in 2020, “which impacted our ability to review cases and closed the court to case filings for several months,” Nemchik said.

But there is something else that is also impacting the number of domestic violence cases filed by the office, she said: a “relatively recent shift” in jury expectations for video evidence.

“Increasingly, juries require video evidence of crimes to return a guilty verdict, based on our office’s post-trial interviews of trial jurors,” Nemchik wrote in an email. “DV cases frequently involve conflicting accounts of critical incidents and recanting parties/victims. When a DV report lacks video evidence of the incident, it raises the degree of difficulty in securing a conviction, a factor that we must consider when deciding whether to prosecute in the first place.”

Voice of San Diego asked officials in the San Diego County District Attorney’s Office if prosecutors there have also heard of such expectations, and whether it was impacting the number of domestic violence cases prosecuted there.

“Generally, juror expectations have risen, and jurors expect increased evidence simply because we are now in a ‘video everything’ culture,” wrote Steve Walker, a spokesman for Stephan, in an email. Prosecutors have “trained for years to ‘neutralize the CSI effect’ and to be proactive in educating jurors throughout the case that ‘there will be no video of this crime.’”

Walker said a lack of footage “can be a factor” in choosing whether to file charges but noted, “typically DV incidents lack video evidence or eyewitnesses besides the suspect and the victim.”

Connecting a lack of video evidence to the drop in domestic violence cases prosecuted is a tough sell for some attorneys who work in the field.

“I’m not buying it. Sounds like an excuse for not pursuing enough cases,” said San Diego trial lawyer Dan Gilleon, who primarily represents victims of sex assault and gender violence. “They should be taking every case that’s provable. They are not. They are cherry-picking the ones that are easiest. … DV is probably the least likely scenario where there would be video evidence.”

Cases with video footage, Gilleon said, are less likely to go to trial. He suspects charging fewer people for domestic violence crimes is more likely a budget decision.

“They are simply not dedicating enough resources to pursuing these cases,” he said.

Matt Murphy, a victim rights lawyer and former senior deputy district attorney for the Orange County District Attorney’s Office, where he worked for 26 years, said, “Domestic violence cases are difficult. By their very nature they are difficult to prosecute, but hopefully no one is requiring a video before they file, because I believe that would be a mistake.”

To connect a drop in cases to a lack of video footage is “a bit of a slippery slope,” Murphy said. “The crime itself is virtually never on video. Liquor store robberies are almost always on video. Domestic violence is not.”

Like Walker, Murphy said prosecutors work to correct unreasonable evidence expectations among jurors ahead of time.

“For hundreds of years jurors have been holding people accountable for domestic violence without tape recordings. It’s the same with DNA and modern forensic science. The ‘CSI effect’ is a real thing, but each case has to be decided on the strengths of its own merits. And fundamentally the most important thing you have in any case is the character and quality of the witness testimony,” Murphy said.